JUDGMENT

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2.The challenge in this appeal is to the judgment of the learned Single Judge of Kerala High Court dismissing the appeal filed by the appellant, while directing the acquittal of the co-accused. Both the accused were convicted by the learned IInd Additional Assistant Sessions Judge, Thrissur for offences punishable under Sections 366A and 376 read with Section 34 of the Indian Penal Code, 1860 (in short 'IPC').

3.Custodial sentence of two years and fine of Rs.10,000/- with default stipulation, sentences of three years and fine of Rs.3,000/-were with default stipulation for the offences punishable under Sections 376 and 366A read with Section 34 IPC respectively.

4.The background facts, as projected by prosecution in nutshell are as follows:

On 18.10.1993 at 7.00 a.m. both the accused, in furtherance of their common intention of kidnapping, induced and procured a minor teenage girl (P.W.2), who had not attained the age of 14 and seduced her to have illicit intercourse with the first accused and first accused took her to Mahadevapuram in Coimbatore District and committed rape in the house of CW8 at Mahadevapuram. Since PW2 did not come back to her house, after making necessary enquiries, PW1, father of PW2, went to Cheruthuruthy Police Station and lodged first information statement and originally man-missing case was registered as Crime No.96 of 1993. The girl was not found out. Finally, a criminal M.C. was filed before the High Court and on the basis of the direction of the High Court, the Circle Inspector of Police found out PW2 and subsequently arrested the accused, continued the investigation and charge was laid. The girl was produced before the Judicial First Class Magistrate's Court, Wadakkancherry on 30.11.1993 and it was recorded that she had stated to the Magistrate that she was studying in ninth standard and she was staying with her father. She was taken from the tuition center while she was going to Akshaya Tuition Centre, Ceruthuruthy. She stated that she went with Iqbal, appellant and first accused, on her own will to Coimbatore on 18.10.1993 from Akshaya Tuition Centre. They were friends. Friend of first accused, namely, Sasi was also with them. They changed the vehicles and finally second accused, Sasi did not accompany them till Coimbatore. She also stated that she had intercourse with Iqbal, first accused, at Coimbatore and not with any other persons, that she was aged thirteen years and six months at that time and she was with Iqbal till she was produced before the Court. Statement under Section 161 of the Code of Criminal Procedure, 1973 (in short 'Cr.P.C.') given by her to the police was also more or less on the same lines. But, before the Court, she deposed in examination-in-Chief that she and her friend PW4 went to the tuition center and an autorikshaw came there. From the autorikshaw, A2 Sasi and A1 Iqbal, got down and A1 told her to get into the autorikshaw to tell something and on his persuasion she got into the autorikshaw and both of them took her to a place called Kolappully. Thereafter, A2 brought a car and they went upto Palakkad and A2 Sasi left. From there, they went to Coimbatore by bus. They took food and A1 took her to a hotel and forced her for intercourse and thereafter they went to cinema etc. Thereafter, they came to the house of CW8 and they were staying in that house. During cross-examination main endeavour of the accused was to show that she came with him on her own will. Letters written by PW2, Exts. D1 to D3, were also produced and marked to show that PW2 and A1 were in love and that was not allowed by the parents. Further, in cross examination, he asked specifically whether she agreed for intercourse willingly to show that intercourse was committed with consent. Evidence of PW4 also supports the evidence of PW2. Evidence of PWs 8 and 9 doctors show that she had intercourse. Evidence shows that she went with her own will and intercourse a